SEPARATION OF POWERS

Separation of Powers

[Name of the Author]

CHAPTER 1: INTRODUCTION

The doctrine of the separation of powers suggests that the principal institutions of state—executive, legislature and judiciary—should be divided in person and in function in order to safeguard liberties and guard against tyranny.

One of the earliest and clearest statements of the separation of powers was given by Montesquieu in 1748 :

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty... there is no liberty if the powers of judging is not separated from the legislative and executive... there would be an end to everything, if the same man or the same body... were to exercise those three powers.

According to a strict interpretation of the separation of powers, none of the three branches may exercise the power of the other, nor should any person be a member of any two of the branches. Instead, the independent action of the separate institutions should create a system of checks and balances between them.

The United States Constitution adheres closely to the separation of powers. Article I grants powers to the legislature; article II gives executive power to the President; and article III creates an independent judiciary. Congress is elected separately from the President, who does not sit as part of the legislature. The Supreme Court can declare the acts of both Congress and President to be unconstitutional.

In practice, however, many countries do not aim for a strict separation of powers, but opt for a compromise, where some functions are shared between the institutions of state. In the UK, the powers of Parliament, Government and courts are closely intertwined. In fact, the executive and legislature are seen as a “close union, [a] nearly complete fusion of the executive and legislative powers,” which Walter Baghot viewed as the “efficient secret of the English constitution”.

Globally, the separation of powers has enjoyed very different degrees of implementation. Parliamentary systems of government have usually united legislature and executive for the sake of expediency. By contrast, presidential systems tend to be strictly separated. Recently, however, the question of the separation of powers has been given new relevance in the UK by the question of constitutional reform and by the new constitutional questions, largely arising from the implementation of European laws such as the Human Rights Act 1998. Professor Vernon Bogdanor has predicted that “issues which, in the past, were decided by ministers accountable to Parliament will now come to be decided by the courts”. This Standard Note sets out the theory of the separation of powers and examines its relevance for questions of constitutional reform in the United Kingdom.

Background

The fourth President of the United States, James Madison, once noted that “it is evident that there is not a single power [in the Constitution] whatever, which may not have some reference to the common defence…(Madison Papers, Vol. 17; 314).” The national security constitution, in the words of Harold Koh, produces “balanced institutional participation” (1990; ...